Loading...
Roshek Building_IBM RedevelopmentTHE CITY ©F Dubuque Alaam~ e DUB E ~ r Masterpiece an the Mississippi 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Roshek Building/IBM Redevelopment Project DATE: June 10, 2009 City Attorney Barry Lindahl recommends City Council approval of the form of Notice and Consent Agreement by and among the City, Dubuque Bank & Trust, Dubuque Initiatives and Roshek Building Investment Fund, LLC, an entity that is being created as part of the tax credit transactions involving the Roshek Building/IBM Redevelopment Project. On May 18, 2009, the City Council approved a previous version of the Notice & Consent Agreement, but since that time, there have been further discussions concerning the tax credit transaction documents by and among the various parties, and the form of the Agreement has been revised. Barry Lindahl advises that the revisions are material enough to require approval of the City Council. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager THE CITY OF DUB E MEMORANDUM Masterpiece on the BARRY LIND H~ v CITY ATTOR EY To: Mich el C. Van Milligen City ager DATE: June 9, 2009 RE: Roshek Building/IBM Redevelopment Project Attached is a revised form of Notice and Consent Agreement ("Agreement") by and among the City, Dubuque Bank & Trust ("DB&T"), Dubuque Initiatives ("DI") and Roshek Building Investment Fund, LLC, an entity that is being created as part of the tax credit transactions involving the Roshek Building/IBM Redevelopment Project. The Agreement is intended to ensure that the City, as guarantor for the loans made by DB&T to or on behalf of DI, receives any notices of default given by other parties involved in the tax credit transactions, even if the City is not a party to a particular agreement. The Agreement also gives the City the right to approve the exercise of certain remedies that may exist under those other agreements. On May 18' 2009, the City Council approved a previous version of the Notice and Consent Agreement. Since that time, there have been further discussions concerning the tax credit transaction documents by and among the various parties and the form of the Agreement has been revised. Bill Noth and I are of the opinion that the revisions are material enough to require the approval of the City Council. There are also additional revisions expected. Briefly, the additional changes are expected to provide that, during the 7 year tax credit compliance period, the City would have an opportunity for 60 days to cure any defaults that may occur, rather than have any consent rights. During the 7 year compliance period, the tax credits received by the investors could be recaptured as a result of a failure to comply with applicable tax regulations. Following the compliance period, the City would be given up to 4 months to pursue any cure of the default. I recommend that the attached Notice and Consent Agreement, and resolution approving the form of the Notice & Consent Agreement be submitted to the City Council for consideration and adoption. OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL balesq@cityofdubuque.org BAL:tIs Attachment cc: Dave Heiar, Economic Development Director Bill Noth, Esq. F:\USERS\tsteckle\Linda h I\IBM\MVM_Revised N otice&ConsentAg reement_061109. doc OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL balesq@cityofdubuque.org ,~ NOTICE AND CONSENT AGREEMENT This NOTICE AND CONSENT AGREEMENT is made as of June _, 2009 (the "Consent Agreement") by and among (i) the City of Dubuque, Iowa, an Iowa municipal corporation ("City"), (ii) Dubuque Bank & Trust Company, an Iowa domestic bank ("DB&T"), (iii) Dubuque Initiatives, an Iowa non-profit corporation ("DI"), and (iv) Roshek Building Investment Fund, LLC, a Delaware limited liability company ("Fund") (each a "Party" and collectively referred to herein as the "Parties"). WHEREAS, in connection with the rehabilitation, renovation and improvement of office/retail space in the Roshek Building located generally at 700 Locust Street, Dubuque, Iowa to be owned by Roshek Building QALICB, an Iowa limited liability company (the "QALICB"), certain of the Parties have entered into the agreements listed on Exhibit A attached hereto, each dated as of the date hereof (each an "Agreement" and collectively referred to herein as the "Agreements"); and WHEREAS, the Parties have agreed to provide City with the notices and rights of consent described herein. NOW, THEREFORE, for good and valuation consideration, and intending to be legally bound, the Parties hereto agree as follows: 1. Notwithstanding anything in the Agreements to the contrary, any Party declaring an "event of default" (however defined) under an Agreement shall send a copy of the notice declaring such default to the City at the time such notice is given to the defaulting party under the applicable Agreement, and the Fund shall send a copy of any notice it receives from ICD VIII, L.L.C., an Iowa limited liability company (the "ICD CDE"), from USBCDE Sub-CDE XXXV, LLC, a Delaware limited liability company (the "USB CDE") or from Roshek/NCF Sub-CDE, LLC, a Delaware limited liability company (the "NCF CDE") requesting consent to declare a default under any of the Agreements. 2. Notwithstanding anything in the Agreements to the contrary, no Party may exercise any remedy granted or allowed to said Party under an Agreement as a result of an "event of default" (however defined) under the Agreement without the prior written consent of the City Manager of the City; provided, however, that such consent shall be presumed and deemed given if the City Manager does not object in writing within ten (10) days of receiving the Party's request for such consent; provided, further, that no such consent shall be required with respect to (a) any demand by DB&T for performance of the City's obligations under that certain Guaranty Agreement dated as of the date hereof, between the City and DB&T (the "Guaranty"), (b) the exercise by DB&T of any right or remedy under the applicable Agreements upon the City's failure to perform under the Guaranty, or (c) the exercise by DB&T of any right or remedy under the applicable Agreements during the period beginning on (i) the date the City is no longer obligated to perform under the Guaranty, and ending on (ii) indefeasible payment in full of the indebtedness to DB&T. 3. Notwithstanding anything in the Agreements to the contrary, the Fund shall not consent to the ICD CDE, the USB CDE or the NCF CDE exercising any remedy granted or allowed to any of them under an Agreement as a result of an "event of default" (however defined) under the Agreement without the prior written consent of the City Manager of the City; provided, however, that such consent shall be presumed and deemed given if the City Manager does not object in writing within ten (10) days of receiving the Fund's request for such consent; and provided further that the requirement to obtain the prior written consent of the City shall not apply to an "event of default" with respect to an event of default under Section 7.1(m) of the Agreement listed in number 1 in Exhibit A hereto. 4. This Consent Agreement constitutes the entire agreement of the Parties with respect to the notices to be provided to the City in connection with any default arising under an Agreement. 5. This Consent Agreement may be amended only by a writing, signed by the Party or Parties to be bound or burdened by such amendment. 6. This Consent Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. 7. Any notice required or permitted to be given hereunder shall be in writing and shall be effective when actually received or delivered by hand or overnight courier, or when confirmed by receipt if transmitted by telecopy or other form of rapid transmission if the notice given by such means of communication is capable of being confirmed upon delivery by electronic means, or three days after being sent by registered or certified mail, postage pre-paid, the certification receipt therefore being deemed the date of such notice, and addressed to the City as follows: City of Dubuque, Iowa 50 West 13th Street Dubuque, Iowa 52001 Attn: City Manager Facsimile: (563) 589-0890 With a copy to: Mr. Barry Lindahl Corporate Counsel Suite 330, Harbor View Plaza 300 Main Street Dubuque, Iowa 52001-6944 Facsimile: (563) 583-1040 The notice address for all other Parties shall be as set forth in the applicable Agreements. 8. This Consent Agreement may be executed in any number of counterparts, all of which, when taken together, shall constitute one and the same instrument, and any Party hereto may execute this Consent Agreement by signing any such counterpart. IN WITNESS WHEREOF, the Parties hereto have caused this Consent Agreement to be executed by their respective duly authorized signatories as of the day and year written above. CITY OF DUBUQUE, IOWA an Iowa municipal corporation By: Roy D. Buol, Mayor ATTEST: By: Jeanne F. Schneider, City Clerk DUBUQUE BANK & TRUST COMPANY an Iowa domestic bank By: Name: Title: DUBUQUE INITIATIVES an Iowa non-profit corporation By: Name: Title: ROSHEK BUILDING INVESTMENT FUND, LLC, a Delaware limited liability company By: Name: Title: F,XHTRTT A 1. Loan Agreement (QLICI Loan) by and among QALICB, as Borrower, and ICD CDE, and USB CDE, and NCF CDE as Lenders, and all Promissory Notes issued thereunder 2. Loan Agreement (Loans A, B and D) between DB&T, as Lender, and DI, as Borrower 3. Loan Agreement (Loan C) between DB&T, as Lender, and DI, as Borrower 4. Fund Loan Agreement between DI, as Fund Lender, and Investment Fund, as Fund Borrower Pledge Agreement between DI, as Fund Lender, and Investment Fund, as Fund Borrower (re: Fund Loan Agreement) 6. FHTC Bridge Loan Agreement between DI, as Fund Lender, and Investment Fund, as Fund Borrower 7. Pledge Agreement between DI, as Fund Lender, and Investment Fund, as Fund Borrower (re: FHTC Bridge Loan Agreement) 8. SHTC Bridge Loan Agreement between DB&T, as Lender, and DI, as Borrower WNOTH/ 616466.1 /MSWord CITY OF DUBUQUE, IOWA PUBLIC NOTICE OF MEETING Government Body: America's River Board Date: Tuesday, June 16, 2009 Time: 3:00 P.M. Place of Meeting: City Hall -Conference Room B NOTICE IS HEREBY GIVEN that the above identified governmental body will meet at the time, date and place as set forth above. The TENTATIVE AGENDA for the meeting is as follows: See Attached Agenda This notice is given pursuant to Chapter 21, Code of Iowa, 2007, and applicable local regulations of the City of Dubuque, Iowa andlor governmental body holding the meeting. Cynthia Ste' auser Assistant City Manager ANY VISUAL OR HEARING IMPAIRED PERSONS NEEDING SPECIAL ASSISTANCE OR PERSONS WITH SPECIAL ACCESSIBILITY NEEDS SHOULD CONTACT THE CITY CLERK'S OFFICE AT (563) 589-4120 OR TDD (563) 690-6678 AT LEAST 48 HOURS PRIOR TO THE MEETING AMERICA'S RIVER BOARD MEETING Tuesday, June 16, 2009 at 3:00 p.m. City Hall -Conference Room B AGENDA I. Approval of Minutes of May 19, 2009 II. Vision Iowa Meeting III. DCHS Projects Financial Statements America' River Phase II Other updates: Marketing, Operations, Capital plan IV. Grand River Center V. City projects: Transient Boat Dock -main channel VI. America's River Corporation VII. Special Events VIII. New items for discussion • Taste of Dubuque: August 1 ~ Irisb Hooley: August 29 Next Meeting: August 18, 2009 America's River Board Minutes May 19, 2009 Present Board Members: Jerry Enzler, Mayor Buol, Mike Van Milligen and Jeff Bertsch Others in attendance: Alan Stache from The Dubuque Historical Society; Jenny Larson Motion by Jerry Enzler seconded by Mike Van Milligen to approve the minutes of March 17, 2009. Motion carried. II. The Board held a Vision Iowa Meeting. According to the State Contract "... (No less than once each calendar quarter during the period of construction of the City's local match obligations and for a period of six (6) months thereafter, representatives of the Parties shall meet to discuss the status of the City's local match obligations and progress toward completion, the disbursement and use of Vision Iowa funds, cost variances that exceed three percent (3%) of cost estimates, efforts to repair and maintain the Project components, and any issues requiring resolution. Beginning one (1) year after completion of the City's local match obligations, representatives of the Parties shall meet no less than annually to discuss component use, efforts to repair and maintain the local obligations, and any issues requiring resolution between or among the Parties, or under this Agreement). Port of Dubuque Parking ramp construction is complete. Diamond Jo will have 50 permits for valet parking in the Port of Dubuque Ramp amendment to their agreement. III. Dubuque County Historical Society Projects: Financial Statements: • Balance Sheet-Kehl gift of $1 million is reflected. Nothing else significant to report. • Income Statement for entire Dubuque County Historical Society includes $350,000 depreciation expense and investments starting to come back. • National Mississippi River Museum: 33% increase in admissions over budget. Nothing significant to report on expense side. • Ham House/Jail-opens this week for operation. Negotiating for sale of Ham House. • Capital-reflects Kehl $1 million gift looking at a connector park to connect the Portside building to the museum. • Mindframe is doing a fundraiser for the museum on May 30th; a percentage of the proceeds will go the museum. IV. Grand River Center: Nothing to report. V. City Projects: • Transient Boat Docks: Nothing to report. VI. America's River Corporation: • Festival is June 13-15. online ticket sales. Ticket sales are going well, especially VII. Special Events: nothing to report. VIII. New items for discussion: • America's River Festival: June 13-15 • Taste of Dubuque: August 1 • Irish Hooley: August 29 Next Meeting: June 16, 2009 3:00 p.m. (This Notice to be posted) NOTICE AND CALL OF PUBLIC MEETING Governmental Body: The City Council of Dubuque, Iowa. Date of Meeting: June 15, 2009. Time of Meeting: 6:30 o'clock P.M. Place of Meeting: Historic Federal Building, 350 West 6th Street, Dubuque, Iowa. PUBLIC NOTICE IS HEREBY GIVEN that the above mentioned governmental body will meet at the date, time and place above set out. The tentative agenda for said meeting is as follows: Greater Downtown Urban Renewal District Resolution approving and authorizing execution of a revised form of Notice and Consent Agreement by and among the City of Dubuque, Iowa, Dubuque Bank & Trust Company, Dubuque Initiatives, and Roshek Building Investment Fund, LLC Such additional matters as are set forth on the additional 11 pages(s) attached hereto. This notice is given at the direction of the Mayor pursuant to Chapter 21, Code of Iowa, and the local rules of said governmental body. Jeanne Schneider City Clerk, Dubuque, Iowa June 16, 2009 The City Council of Dubuque, Iowa, met in regular session, in the Historic Federal Building, 350 West 6th Street, Dubuque, Iowa, at 6:30 o'clock P.M., on the above date. There were present Mayor Pro-Tem Joyce E. Connors in the chair, and the following named Council Members: Karla Braig, Ric Jones, Kevin Lynch, David Resnick, Dirk Voetberg Absent: Mayor Roy Buol *~**~~* m2- Council Member Lynch introduced and delivered to the Clerk the Resolution hereinafter set out entitled "RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF A REVISED FORM OF NOTICE AND CONSENT AGREEMENT BY AND AMONG THE CITY OF DUBUQUE, IOWA, DUBUQUE BANK & TRUST COMPANY, DUBUQUE INITIATIVES, AND ROSHEK BUILDING INVESTMENT FUND, LLC", and moved: / X / that the Resolution be adopted. /_/ to ADJOURN and defer action on the Resolution and the proposal to the meeting to be held at o'clock ~.M. on the day of , 2009, at this place. Council Member Braig seconded the motion. The roll was called and the vote was, AYES: Braig, Connors, Jones, Lynch, Resnick, Voetberg NAYS: None Whereupon, the Mayor Pro-Tem declared the measure duly adopted. _3_ RESOLUTION NO. 199-09 RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF A REVISED FORM OF NOTICE AND CONSENT AGREEMENT BY AND AMONG THE CITY OF DUBUQUE, IOWA, DUBUQUE BANK & TRUST COMPANY, DUBUQUE INITIATIVES, AND ROSHEK BUILDING INVESTMENT FUND, LLC WHEREAS, in connection with the rehabilitation, renovation and improvement of office/retail space in the Roshek Building located generally at 700 Locust Street, Dubuque, Iowa, the City of Dubuque ("City") and other parties intend to enter into various agreements for the purpose of facilitating the use of historic tax credits and new market tax credits in conjunction with that project; and WHEREAS, pursuant to Resolution No. 169-09 approved on June 1, 2009, a form of Notice and Consent Agreement was approved as to form by this Council for the purpose of ensuring that the City receives certain notices and has certain rights of consent in connection the various agreements to be entered into; and WHEREAS, following such action certain modifications were proposed and have been made to the form of Notice and Consent Agreement, which modifications are acceptable to the City Attorney, and a revised form of Notice of Consent Agreement containing such modifications (the "Agreement") now has been presented to the City Council for further review and final approval; and WHEREAS, the Council has determined that the Agreement is in the best interests of the City and the residents thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the form and content of the Agreement, the provisions of which are incorporated herein by reference, be and the same hereby are in all respects authorized, approved and confirmed, and the Mayor and the City Clerk be and they hereby are authorized, empowered and directed to execute, attest, seal and deliver the same for and on behalf of the City in substantially the form and content now before this meeting, but with such changes, modifications, additions or deletions therein as may be approved by such officers upon the advice of the City Attorney, and that from and after the execution and delivery of the Agreement, the Mayor and the City Clerk are hereby authorized, empowered and directed to do all such acts and things and to execute all such documents as may be necessary to carry out and comply with the provisions of the Agreement as executed. -4- PASSED AND APPROVED this 15th day of June, 2009. Joyce E. Connors Mayor Pro-Tem ATTEST: ATTEST: Jeanne F. Schneider Clerk -5- CERTIFICATE STATE OF IOWA ) SS COUNTY OF DUBUQUE ) I, the undersigned City Clerk of Dubuque, Iowa, do hereby certify that attached is a true and complete copy of the portion of the corporate records of said Municipality showing proceedings of the Council, and the same is a true and complete copy of the action taken by said Council with respect to said matter at the meeting held on the date indicated in the attachment, which proceedings remain in full force and effect, and have not been amended or rescinded in any way; that meeting and all action thereat was duly and publicly held in accordance with a notice of meeting and tentative agenda, a copy of which was timely served on each member of the Council and posted on a bulletin board or other prominent place easily accessible to the public and clearly designated for that purpose at the principal office of the Council (a copy of the face sheet of said agenda being attached hereto) pursuant to the local rules of the Council and the provisions of Chapter 21, Code of Iowa, upon reasonable advance notice to the public and media at least twenty-four hours prior to the commencement of the meeting as required by said law and with members of the public present in attendance; I further certify that the individuals named therein were on the date thereof duly and lawfully possessed of their respective city offices as indicated therein, that no Council vacancy existed except as may be stated in said proceedings, and that no controversy or litigation is pending, prayed or threatened involving the incorporation, organization, existence or boundaries of the City or the right of the individuals named therein as officers to their respective positions. WITNESS my nd a d the seal of said Municipality hereto affixed this 16h day of June, 2009. ity Clerk, Dubuque, Iowa SEAL DCORNELL/ 617161.1 /MSWord\10422.087 _g_